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HIV AND AIDS AS GROUNDS FOR DIVORCE

A new Bill has been introduced into the Parliament of Azerbaijan proposing AIDS and HIV positivity of a spouse as new grounds for divorce. Couples intending to marry will need to submit a medical certificate with the relevant information along with other documents. If either party conceals the fact of HIV/AIDS the court will grant a divorce on the application of the aggrieved spouse.

Azerbaijan is not the first country to raise the issue of HIV in relation to family law issues. In 2013 the Madras High Court (India) granted divorce in a landmark case to a man on the ground that his wife was HIV-positive, equating the condition to a venereal disease. “When a spouse is HIV-positive, the other spouse is entitled for divorce under the Hindu Marriage Act,” ruled Justice R S Ramanathan. He observed that in 1955 when the Hindu Marriage Act came into existence, HIV was not heard of. Section 13(v) of the Act allows divorce where a spouse is suffering from a venereal disease. His Honour found the expansive interpretation of the meaning of a venereal disease was appropriate in the circumstances to embrace the modern health challenges.

So where does Russia stand in terms of HIV positive spouses? The fact itself does not constitute a ground for divorce. The irretrievable breakdown of marriage remains the sole legal cause for its termination. Arguably, of course, the disease will push many marriages to that point. However, if a spouse suppressed the fact of a venereal disease or being HIV positive, it may lead to marriage annulment on the application of the other party [section 15(3) of the Family Code of Russia]. The Family Code provides for free consensual medical examination of the husband- and wife-to-be (something quite surprising to see in this context given public medical services are generally free and accessible to anyone). It’s also worth noting that a person can be prosecuted for deliberately or recklessly transmitting HIV to their partner.

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